The Petitioner, an automotive supplier, seeks to employ the Beneficiary as a "Buyer II-Program." It requests advanced degree professional classification for the Beneficiary under the second preference immigrant category. Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). This employment-based "EB-2" immigrant classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status.
The Director ofthe Texas Service Center denied the petition on the grounds that the evidence ofrecord did not establish that the Beneficiary had the requisite qualifying experience to meet the terms of the labor certification and to be eligible for classification as an advanced degree professional.
On appeal the Petitioner submits additional documentation and asserts that the evidence of record establishes that the Beneficiary has the requisite experience to qualify for the proffered position under the terms of the labor certification and to qualify for the requested visa classification.
In visa petition proceedings it is the Petitioner's burden to establish eligibility for the requested benefit. See section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal.
Law
Employment-based immigration generally follows a three-step process. First, an employer obtains an approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). By approving the labor certification, the DOL certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that employing a foreign national in the position will not adversely affect the wages and working conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). See section 204 ofthe Act, 8 U.S.C. § 1154. Third, ifUSCIS approves the petition, the foreign national may apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 ofthe Act, 8 U.S.C. § 1255.
The term "advanced degree" is defined in the regulation at 8 C.F.R. § 204.5(k)(2) as follows: p. 2 Advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree.
The regulations at 8 C.F.R. § 204.5(k)(3)(i) state that a petition for an advanced degree professional must be accompanied by either: (A) An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or (B) An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.
In addition, a beneficiary must meet all ofthe education, training, experience, and other requirements specified on the labor certification as ofthe petition's priority date, See Matter o_f Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977).
Analysis
The labor certification in this case specifies the following in section H (Job Opportunity Information) regarding the requirements for the position of Buyer II-Program:
The priority date of a petition is the date the underlying labor certification was filed with the DOL. 8 C.F.R. ~ 204.5(d). 2 4. Education: Minimum level required: 4-A. Major field o f study 5. Is training required for the job?
6. Is experience in the job offered required?
6-A. How long?
8. Is an alternate combination of education
and experience acceptable? 8-B. What alternate combination?
9. Is a foreign educational equivalent acceptable?
10. Is experience in an alternate occupation acceptable?
10-A. How long?
10-B. What job title(s)?
14. Specific skills or other requirements:
Master's degree
Industrial Engineering, Business Administration, or related field No Yes
24 months
Yes
Bachelor's degree plus
5 years of progressive post- bachelor's experience in commodity purchasing Yes
Yes
60 months
Buyer, Program Buyer, Purchasing Agent, and related occupations which in this case is July 3, 2019.
One year of qualifying commodity purchasing experience must include experience with Axalant, SupplyOn, and SAP. Thus, the minimum educational and experience requirements of the labor certification are either: (1) a U.S. master's or foreign equivalent degree in one of the referenced academic fields plus two years of experience in one of the referenced occupations (including one year of experience with Axalant, SupplyOn, and SAP), or (2) a U.S. bachelor's or foreign equivalent degree in one of the referenced academic fields plus five years ofpost-baccalaureate experience in one ofthe referenced occupations (including one year of experience with Axalant, SupplyOn, and SAP). The Petitioner asserts that the Beneficiary meets the labor certification's alternate requirements of a bachelor's degree and five years of qualifying experience, as well as the additional requirements in H.14.
Therecordincludesco iesoftheBeneficia · · lomafromthe~-------~ ~----------------------------~ inBrazil,showingthatshe was awarded a Bacharel em Administracao (Bachelor of Administration) after completion of a four- year academic program on August 21, 2012. We find that this Brazilian degree is equivalent to a U.S. bachelor's degree in business administration. As such it meets the alternate educational requirement of the labor certification.
Since the Beneficiary's qualifying educational credential is a bachelor's degree, she must have had five years of qualifying post-baccalaureate experience by the petition's priority date of July 3, 2019, to meet the minimum experience requirement for classification as an advanced degree professional, as provided in 8 C.F.R. § 204.5(k)(3)(i)(B). In sections J and K of the labor certification the Petitioner asserts that the Beneficiary has more than five years of qualifying experience b: virtue of her employment as a Buyer with an affiliated company,I Iin I I Brazil, from October 18, 2010, to March 1, 2018. According to the labor certification the Beneficiary began working for the Petitioner on March 2, 2018, in the position of Buyer II-Program, which is not As its initial evidence of the Beneficiary's experience wit~ Ithe Petitioner submitted a letter from the company's director ofmaterials management which stated that the Beneficiary was employed as a Buyer from October 18, 2010, to March 1, 2018, the last three years of which (as of March 1, 2015) she was physically located in the United States. As pointed out by the Director in his request for evidence (RFE), however, the Beneficiary's nonimmigrant visa (NIV) application in August 2016 qualifying experience. indicated that she was already employed by the Petitioner at that time and that her employment dates
Section J.21 of the labor certification indicates that the Beneficiary did not gain any qualifying experience with the Petitioner in a position substantially comparable to the proffered position in this proceeding.
The letter listed the Beneficiary's job duties and stated that her experience included the use of Axalant SupplyOn, and SAP, as required in section H.14 ofthe labor certification.
The Beneficiary was admitted to the United States on an Ll visa (Tntracompany Transferee) in accordance with 8 C.F.R. § 214.2(1)(1 ), which states that "Under section 101 (a)(l 5)(L) of the Act, an alien who within the preceding three years has been employed abroad for one continuous year by a qualifying organization may be admitted temporarily to the United States to be employed by a parent, branch. affiliate, or subsidiary of that employer in a managerial or executive capacity, or in a position requiring specialized knowledge." p. 4 withl lwere from January 15, 2010, to February 1, 2015. A subsequent NIV application in August 2018 to extend the Beneficiary's stay in the United States indicated slightly different dates for her employment withl Ifrom February 15, 2010, to February 28, 2015. The fore~oing dates also differ from the employment dates indicated in the labor certification and the letter from I In the RFE the Director requested an explanation for these conflicting dates of employment along with supporting documentation.
In response to the RFE the Petitioner reiterated its contention that the Beneficiary was still employed byl !during the first three years of her work in the United States - from March 1, 2015, to March1,2018. ThePetitionersubmittedincometaxrecordsoftheBeneficiary'spayfromc===] These records only covered the years 2010-2015, however, and therefore failed to show t h a t L _ _ J continued to employ the Beneficiary in the years up to 2018. The Petitioner also submitted a letter from its global mobility specialist who acknowledged that during the Beneficiary's "expatriate assignment" in the United States from March 1, 2015, to March 1, 2018, she was paid by the Petitioner pursuant to the terms of her "expatriation contract."
The Director determined that the evidence of record did not establish that the Beneficiary continued to be employed byl Iafter her move to the United States for her expatriate assignment with the Petitioner in early 2015. As a result, the Beneficiary only gained qualifying post-baccalaureate On appeal the Petitioner submits a copy ofthe "Expatriation Contract" between! !(''acting on behalfofitselfandthe[Petitioner]")andtheBeneficiary,datedFebruary20,2015. Accordingtothe Petitioner the contract confirms that the Beneficiary remained an employee ofl Ifrom March 1, 2015, to March 1, 2018. In support of this claim the Petitioner points out that the contract was signed by I Iand the Beneficiary; that the contract makd Iresponsible for the cost of securing the Beneficiary's work authorization in the United States, for determining the variable compensation system for the Beneficiary, for paying a reference salary and any necessary taxes to the U.S. Internal Revenue Service (IRS), for ensuring insurance coverage for the Beneficiary, and for helping her find housing in the United States; and that the contract gives I Ithe right to terminate the Beneficiary's underlying employment contract. Notwithstanding these claims, we Experience that predates the awarding of the Beneficiary's bachelor's degree is not qualifying experience in this petition for advanced degree professional classification because it is ~ot "post-,accalaureate experience" as required by 8 C.F.R. § 204.5(k)(3)(i)(B). Thus, the Beneficiaiy's experience with.___ ____. in the time period up to August 21, 2012, is not qualifying experience.
determine that the contract does not confirm tha~~---~lremained the Beneficiary's employer once the Beneficiary began working for the Petitioner.
Section 2.1 of the contract states that the Beneficiary's worksite during the contractual period i s D I l South Carolina, USA, and that the Petitioner is entitled to assign the Beneficiary to another workplace consistent with the Beneficiary's qualifications. Section 2.1 also provides that the Beneficiary's employment agreement of October 18, 2010, with I l"shall be dormant during the term of this contract and shall be reactivated upon return to Brazil." Section 2.2 states that "[t]he person entitled to issue instructions to [the Beneficiary] is the Senior Purchasing Manager of the [Petitioner]," and that "[this person] is the functional as well as disciplinary supervisor of the [Beneficiary]." Section 2.3 states that the effective date of the contract is March 1, 2015, has a term of three years, and may be extended by mutual agreement for another two years maximum. Section 3.1 provides that as of March 1, 2015, the Beneficiary will receive her salary from the Petitioner. Section 22 states that "[alfter endinP the international transfer .. J d i s willing to reintegrate the Beneficiary] into the ....._ _ ___,] in Brazil . . . subject to [her] entering immediately following I completion of the activity in the country of assignment."
While the "Expatriation Contract" indicates that some ties remained between I Iand the Beneficiary during the contract's operational period, the contract provisions discussed above make clear that the Petitioner became the Beneficiary's employer when the contract came into force on March 1, 2015. This conclusion is bolstered by the fact that the Beneficiary identified the Petitioner as her employer on the NIV applications ofAugust 2016 and August 2018 referenced in the Director's decision. Those NIV applications specifically identifiedI Ias the Beneficiary's previous employer from 2010 to early 2015, stated that the Beneficiary's initial LI visa was approved on January 30, 2015, and that she first entered the United States on February 6, 2015, and specifically identified the Petitioner as the Beneficiary's current employer in August 2016 and August 2018, respectively.
The Petitioner has not explained the basis of its assertion that the Beneficiary remained an employee ofl luntil March 1, 2018, and on March 2, 2018, became an employee of the Petitioner. The only significance ofthose dates appears to be that the "Expatriation Contract" had an initial three-year validity period from March 1, 2015, and could be extended on March 1, 2018, for another two years. But the terms ofthat contract indicate that the Beneficiary became an employee ofthe Petitioner when the contract took effect in 2015, and the nature of their relationship did not change with the contract extension in 2018.
Conclusion
The record establishes that the Beneficiary was employed by I Ias a Buyer from 2010 ( ~ starting date was probably October 18, 2010, based on the Expatriation Contract, the letter fromlJ Iand the Beneficiary's income tax records) until early 2015. The Beneficiary only gained qualifying experience, however, during the two and a half year period after her bachelor's degree was awarded on August 21, 2012, until she departed Brazil in February 2015 and began her employment with the Petitioner on March 1, 2015. While the Beneficiary did meet the specific skills requirements p. 6 of section H.14 of the labor certification, she did not gain five years of qualifying experience, as required in section H. 10, by the petition's priority date of July 3, 2019. Therefore, the Beneficiary does not meet the alternate experience requirement of the labor certification (in combination with her bachelor's degree) and is not eligible for advanced degree professional classification under 8 C.F.R. § 204.5(k)(3)(i)(B). The appeal will be dismissed for the above stated reasons, with each considered an independent and alternative basis for the decision.
ORDER: The appeal is dismissed.
G